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Saturday, 12 August 2017

It has been a turbulent summerfor Roger Waters’ new album “Is this the life we really want?”, released around two months ago. In Italy, the sale of the album cover, the booklet and the CD sticker was prohibited by the Milan Court of first instance on 25 July last (the decision is not available on public databases yet, as soon as this Kat finds it, she will let you know).The reason? The cover art was found to amount to an infringement of copyright in a work of art called “Cancellatura” (1964), by Italian artist Emilio Isgrò.

Mr Isgrò is well known in his native Italy as well as around the globe for his erasure technique. The message he conveys through his artworks is literally hidden between the lines: he manually erases parts of the text with black ink, leaving only a few visible words. The resulting message is cryptic and evocative at the same time. These works of art have been exposed in museums and have been widely discussed by experts for half a century. The cover of Mr Waters' new album also uses the erasure technique, blacking out text with irregular lines and leaving out only the words forming the title of the album itself.

In the present case, the Milan Court of First Instance had to assess, first, whether Isgrò's work could be protected and, secondly, whether said work had been unlawfully reproduced in the album cover at stake. As regards the first point, the court had no problem in establishing the protectability of the artist and of his works of art, which have been exposed and studied throughout the years and whose artistic value is persistent and undiminished.

As regards the second point, the court introduced the discussion by saying that it is the expression what is protected, not the idea behind it. In this case, it is clear in the blink of an eye that the expressiveness in two works of art is the same. The use of black irregular lines, traced in an irregular manner only leaving some of the words are unmistakable. The court added that the use of the same expressive forms is also strenghtened by the common perception of music and art critics. For these reasons, the court issued the injunction banning the sale of everything but the plain CD, basically. With a hefty fine attached (€100 for each new infringement following the injunction), walling off the Italian market to the former Pink Floyd bassist (wink wink).

William Xerra's "Vive"

The court’s analysis was nonetheless criticised by some, who inferred that not even Isgrò's work was original because it was inspired by and a continuation of the earlier works by Man Rey (artist William Xerra famously said Rey “lives” on in Isgrò). This Kat, though, tends to agree with the court. If we compare first Rey’s and Isgrò’s works, we notice that there is a similarity in the idea, the expression of it is completely different. One erases every word in the text while the other leaves out some words, to compose thoughts and sentences which express something else than deleting. If we confront, in turn, Waters’ album cover with Isgrò’s “Cancellatura”, the expressivity which emerges is the same. There was no effort to contextualise, parody or reference Isgrò’s work. Although the erasure technique has been used in art and in other fields, the use done by Mr. Isgrò is different and stands out, while the album cover does not. It’s just a watered down version.[Update! Thanks to Kat friend Reinhard Oertli's hint, the decision (in original Italian) can be found here]

Dear IPKat The decision can be found (in Italian) under www.gambinomayola.it/doc/-_Ordinanza_0-1900.pdf. The esteemed judge Dr. Silvia Giani uses the traditional distinction between expression (protected by copyright) and idea (not protected by copyright), which in fact is a truism and often causes fallacy. A closer look at the work by Isgrò and at the cover coming with Roger Water's music shows that the cover uses the same technique and conceptual idea as Isgrò, but differs widely in its creative details. It suffices to look at the elegant word-by-word cancellations of Isgrò and the rough blacklining of the music cover, and in particular at the different way in which the left-over words are spread out over the page. While I admit that honest copyright experts may disagree on this conclusion, I consider Ms Giani's decision wrong.That art critics detect the reference to Isgrò's work speaks for their professional cultural prowess (prodezza culturale), but cannot be an argument for copyrght violation. The main sections of the decision read as follows (translation by myself):"Sec. 8, past para., page 9:In “Cancellatura” of 1964 by Isgrò, the black lines are continuous and are characterized, in their expressive form, by irregularities, allowing some lateral graphic signs to transpire - as components of the deleted words - and letting stand out other words placed between the above black lines, which acquire expressive force thanks to the latter and the cancellation of the underlying words.Sec. 9 On the illegality of the reproduction, pages 9/10Given the protectability of Isgrò's work, it is necessary to perform a concrete assessment, by means of a comparative assessment, of the applicant's works with regard to the material that covers or accompanies the phonographic support (CD and vinyl disc), and in particular the casing, the cover and the booklet of the musical work by Roger Waters.This material, which is marketed along with the phonographic supports, reproduces, as becomes apparent ictu oculi by a comparison with the expressive forms of Isgrò's work "Cancellations" of 1964: black lines, drawn irregularly, letting transpire some underlying graphic signs and letting stand out the remaining words saved from the cancellation by black lines.The comparison of Isgrò's work with the illustrative material that accompanies Roger Waters's phonographic support makes evident that that the reproduction has slavishly resumed the personal expressive form of the artist Isgrò.It has already been said that the relevant is not are not the inspirations, the underlying ideas, the contents, the meanings attributable to the expressive forms, but exclusively the represented forms themselves, covered and protected as such by copyright.The relevance of the reproduction of the same expressive forms in the material accompanying the disc (on CD or vinyl support) "Is this the life we really want?" by Roger Waters, whose company is the distributor for Italy, is also confirmed by the general perception by critics and art critics, who have immediately associated the cover of the work in question to the artist Emilio Isgrò (see paragraphs 13 and 17, respectively, 15 June 2017 and May 31, 2017, where reference is made to the "cover that cites the works of Emilio Isgrò, with a lot of creative deleting that reveals otherwise concealed meanings"). Hence the illicit nature of the reproduction of Isgrò's work without consent of the author."Miagolati saluti/mewed regards Reinhard Oertli

Well, they look different to me. In the right-hand image, only the individual words have been erased, leaving the spaces between words unobliterated, whereas in the left-hand image, entire sentences appear to have been obliterated, including intermediate spaces. The right-hand image resembles a brick wall, whereas the left-hand image is reminiscent of geological strata or the edge of a thick sheet of plywood.

Which particular work of Emilio Isgrò's has had its copyright violated?

If - as appears here - the answer is "all of them" then you do not have copyright violation, but instead a misapprehension and extension of copyright protection to the larger theme (i.e., idea) behind the different works.

Expressivity emerging when only looking at multiple works clearly indicates expressivity of ("similarity in the") idea.

yippee finally we learn that the blackened papers typically returned on many "freedom of information act" requests are in violation of Mr. Isgro's copyright. So they may no more be blackened in the future. Also it is time that Adobe remove that feature from Acrobat, because it invites to produce more infringing works.

This decision is nonsense.Surely the court cannot be saying that no future work of art may reference the black-lining redaction techniques used by intelligence agencies, governments and privacy advocates the world over without infringing Isgro's copyright?Pathetic.

Terrible decision. The judge has correctly stated copyright protects the expression not the idea, but then has completely redefined what the expression is in order to cover absolutely any work made according to the same idea. Quite simply no specific work was copied. Instead the artist the idea behind the earlier works (selective erasure of words from text) to create their own unique work.

I am not however surprised that an Italian court found in favour of an Italian artist against a foreign "infringer".

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